Thurston v. Pallito et al

Filing 49

ENTRY ORDER Adopting 48 Magistrate Judge's Report and Recommendation granting 47 Defendants' Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Christina Reiss on 9/24/2015. (pac)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

CHRISTOPHER THURSTON,
Plaintiff,
v.
SCOTT MORLEY, BOB ARKLEY,
and CARL DAVIS,
Defendants.

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Case No. 5: 13-cv-316

ENTRY ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
(Docs. 47, 48)
This matter came before the court for a review of the Magistrate Judge's August
25, 2015 Report and Recommendation ("R & R"), in which he recommended that the
court grant the Fed. R. Civ. P. 12(b)(6) motion to dismiss filed by Defendants Scott
Morley, Bob Arkley, and Carl Davis (collectively, "Defendants"). 1 (Doc. 48.) Plaintiff
Christopher Thurston's claims stem from the alleged confiscation of his mental health
journal by Defendant Arkley and his alleged subsequent decision to put Plaintiff in
administrative segregation based on it. Plaintiff further alleges that Defendants Morley
and Davis sent copies of his journal entries to the Vermont State Police, who then
questioned him about the journal's contents for approximately thirty minutes.
In their motion, Defendants seek dismissal of Plaintiffs Second Amended
Complaint because Plaintiffs 42 U.S.C. § 1983 claims for money damages against them
in their official capacities are barred by the doctrine of sovereign immunity, and because
Plaintiff has failed to allege any violation of his Fifth Amendment rights because his

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Defendants were Vermont Department of Corrections ("DOC") officials at all relevant times.

journal entries were not compelled communications. (Doc. 47.) Neither party has filed
an objection to the R & R, and the time period to do so has expired.
A district judge must make a de novo determination of those portions of a
magistrate judge's report and recommendation to which an objection is made. Fed. R.
Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F.3d 401, 405 (2d
Cir. 1999). The district judge may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l);
accord Cullen, 194 FJd at 405. A district judge, however, is not required to review the
factual or legal conclusions of the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985).
In his eight pageR & R, the Magistrate Judge carefully reviewed the factual
allegations and legal claims in both the original Complaint and the Second Amended
Complaint and the motion to dismiss and ultimately recommended dismissal of all claims
against Defendants based on Plaintiffs failure to allege a Fifth Amendment violation
because Plaintiff voluntarily created the journal in question. See United States v. Doe,
465 U.S. 605, 612 n.10 (1984) (observing that "[i]fthe party asserting the Fifth
Amendment privilege has voluntarily compiled the document, no compulsion is present
and the contents of the document are not privileged"). In addition, the Magistrate Judge
found Plaintiff alleged no monetary damages as a result of Defendants' alleged actions
and that any claim for monetary damages that he might seek against Defendants in their
official capacities is barred by Vermont's sovereign immunity. This court finds the
Magistrate Judge's decision well-reasoned and adopts the R & Rand its recommendation
in its entirety.
CONCLUSION

For the foregoing reasons, the court hereby ADOPTS the Magistrate Judge's
R & R as the court's Order and Opinion (Doc. 48), and GRANTS Defendants' motion to
dismiss. (Doc. 47.)
SO ORDERED.
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Dated at Burlington, in the District of Vermont, this

;2 'f day of September, 2015.

~·~_/...-:.-::::;,__-_~
Christina Reiss, Chief Judge
United States District Court

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